Alan Zendell, March 5, 2024
On March 4th, the United States Supreme Court demonstrated that it is almost as dysfunctional as our Congress. Two unanimous rulings would normally signal unity and agreement, but the only point on which the Justices were agreed was being unwilling to be seen as the instrument that undid Donald Trump’s MAGA movement. Its decisions were accompanied by three supporting opinions that sharply contradicted and attacked each other.
The Court unanimously decided that states cannot remove a candidate from a presidential ballot based on the Insurrectionist Clause (Section 3) of the 14th Amendment because the Constitution assigns the power to enforce the Amendment to Congress. The problem with that conclusion is that nowhere in the Amendment or elsewhere in the Constitution is that delegation to Congress explicitly stated.
The Court denied Trump’s arguments that he was not an officer of the government at the time of the January 6th insurrection and that he did not engage in the insurrection. Rather, their second unanimous decision was to accept without comment the Colorado Supreme Court’s finding that Trump is guilty of leading the insurrection.
The Court had no trouble agreeing on its decision. Its problem was finding a legal justification for it. If Congress is the only entity empowered to disqualify a candidate under the Amendment, disqualification can never occur in real time while the question is relevant. Unlike the Court, which can act expeditiously in emergencies, Congress could only rule a candidate ineligible by passing legislation to correct what it considers a violation of the Amendment after the fact. If said candidate had already won the election and been inaugurated, Congress’ only recourse would be impeachment, which is a political process bearing little resemblance to a legal proceeding. The Founders considered impeachment an emergency measure to save the country from a corrupt president, but Congress turned it into a political weapon.
In an Op-ed, today, respected University of Connecticut historian Manisha Sinha wrote: “Section 3 does not call for Congress to enforce disqualification for participating or aiding in an insurrection. It only gives Congress the power to remove that disqualification by a two-thirds majority of each house.” Conservative attorney George Conway told CNN that none of the three opinions defending the decision “make any sense whatsoever.” The Court implicitly agreed that Trump committed insurrection, but ruled that his guilt doesn’t disqualify him. In Conway’s words, Trump “remains an adjudicated insurrectionist” because the Court accepted Colorado’s conclusion that he was guilty.
Americans have always naively seen the Supreme Court as the last line of defense in enforcing laws that translate our Constitution into rules of order. Every attempt to stack the Court toward any extreme ideology has been met with huge outcries from legal scholars on all sides. But Trump and then Senate Majority Leader Mitch McConnell, in one of the few areas in which their interests were aligned, created a politicized Court that found itself unable to reach a rational conclusion on an issue that has potentially catastrophic implications for our democracy. It effectively refused to engage in arguments over the long-term interests of the United States, and in doing so reneged on its role as a Branch of Government co-equal to the Executive.
When I step back from the politics and the vitriolic pronouncements on all sides, I’m left with genuine concern for America’s future. Donald Trump has found dozens of ways to challenge our innocence, our blind trust that America rested on a sound foundation and the Supreme Court could always be relied on to rise above pettiness and power games. That made me compare the Court to the United Nations.
The UN was a bold, brave attempt to create the illusion of world unity, but it only works when all the permanent members of the Security Council are in agreement. Situations like Ukraine and Gaza, which challenge the individual interests of the great powers invariably end in stalemate. I can’t help but look at the Court that way. It has demonstrated a willingness to strike unprecedented ground when its action is in line with a powerful political minority, but finding itself in a unique position to depoliticize an issue of critical importance to our democracy, it lacked the will.
Yet, in putting its dysfunction on display, the Court managed to reach the right conclusion. Part of me would love to see Donald Trump disqualified, his political career and financial empire in ruins, his future spent fighting to stay out of prison. But given the divisions in the country and the lies Trump effectively promulgated, disqualifying him would leave his supporters more enraged and dangerous than they were when he whined that the 2020 election was stolen from him.
The only way to silence Trump and the MAGA movement is for them to be soundly, convincingly defeated in November. The voters are us, and in America, we’re supposed to be the ones who determine our future.
America the Beautiful 